senate Bill S4685

Requires the preparation of a comprehensive economic development plan for the use of eminent domain when the primary purpose is economic development

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 14 / Apr / 2011
    • REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 04 / Jan / 2012
    • REFERRED TO COMMERCE, ECONOMIC DEVELOPMENT AND SMALL BUSINESS
  • 15 / May / 2012
    • 1ST REPORT CAL.769
  • 16 / May / 2012
    • 2ND REPORT CAL.
  • 21 / May / 2012
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2012
    • COMMITTED TO RULES

Summary

Requires the preparation of a comprehensive economic development plan for the use of eminent domain when the primary purpose is economic development and certain residential premises are to be acquired; requires municipal approval of the exercise of eminent domain power in such cases; enacts the "eminent domain reform act".

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Bill Details

See Assembly Version of this Bill:
A3366
Versions:
S4685
Legislative Cycle:
2011-2012
Current Committee:
Senate Rules
Law Section:
Public Authorities Law
Laws Affected:
Amd §§103, 204 & 207, add §204-a, EDP L; amd §1411, N-PC L; add §858-c, Gen Muni L; add §1831-b, Pub Auth L
Versions Introduced in Previous Legislative Cycles:
2009-2010: S1669, A1568
2007-2008: A1264

Sponsor Memo

BILL NUMBER:S4685

TITLE OF BILL:
An act
to amend the public authorities
law, the not-for-profit
corporation law, the general municipal law and the eminent domain
procedure
law, in relation to eminent domain reform

PURPOSE OR GENERAL IDEA:
To reform the eminent domain process in relation to economic
development projects by expanding judicial reform, providing more
local control over eminent domain decisions, requiring a
comprehensive economic development plan, and requiring a homeowner
impact statement.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Short Title. The act shall be referred to as the "Eminent
Domain Reform Act".

Section 2. Add a new § 1831-b to the public authorities law to give
local governments the power to approve or disapprove any public
authority's use of eminent domain.

Section 3. Amends § 1411 of the not-for-profit corporation law to give
local governments the power to approve or disapprove local
development corporation's use of eminent domain.

Section 4. Adds a new § 858-c to the general municipal law to give
local governments the power to approve or disapprove industrial
development agency's use of eminent domain.

Section 5. Amends § 103 of the EDPL to include new Definitions.

Section 6. Amends the § 204 of the EDPL to include a new section (4)
to the determinations and findings requirements by including a new
section on economic development.

Section 7. Adds a new § 204-a to the EDPL.
A. Requires a comprehensive economic development plan in cases
where eminent domain is used for economic development. Economic
development plans must be approved by the local government.

B. Requires that a homeowner impact assessment statement be completed
to assess the actual harm to affected condemnees, how the project
would benefit the community and justification for the condemnation.

C. Increases compensation to condemnees whose home or dwelling is
acquired for an economic development project. The compensation, in
addition to the compensation already required by law, would be 150% of
total fair market value.

Section 8. Amends § 207 of the EDPL to expand judicial review in cases
where a condemnor substantially alters the scope of the project, or
the determinations and findings, to allow citizens a fair process.


Section 9. Is the effective date.

JUSTIFICATION:
The use of eminent domain is an important power for government to move
forward on important public projects. However,
the recent United States Supreme Court decision, KELO et al., v.
CITY OF NEW LONDON et al., underscores the need for further eminent
domain reform.

Several issues emerge from the Committee's investigations and the
Supreme Court decision. First, is the meaning of public use under the
5th Amendment of the United States Constitution (New York has a
similar constitutional provision. See: Article I, section 7 of the
State Constitution). The New London decision centers on condemnation
where one private interest is favored over another for the public
purpose of economic development. The Court held that the economic
development plan of the city did constitute a public use.
Specifically, however, the decision focused on the appropriate legal
standard of review. The
Supreme Court gives wide latitude to governments to determine public
use.

The second issue that emerges is who is using the power of eminent
domain. In New York, like the New London case, these decisions are
often done through quasi-public development agencies or authorities.
In New York quasi-public entities such as industrial development
agencies, local development corporations and public authorities have
the power of eminent domain to fulfill their public mission. Often
these quasi-public entities can condemn homes for economic
development projects. Authorities and other development agencies are
shielded from traditional public scrutiny.

This legislation specifically focuses on condemnation in which private
property is taken for economic development purposes and transferred
to other private entities. In these cases, government must be
extremely cautious in using its power of eminent domain and must do
everything in its power to protect citizens. The Eminent Domain
Reform Act will
include three major provisions: increasing the timeframe citizens can
appeal decisions to condemn, enacting significant protections for
homeowners and other displaced residents where their property was
condemned for economic development, and empowering local governments
to have decision making power of the use of eminent domain by public
authorities and IDAs.

This bill would strike the right balance between the needs of
society and individual liberties.

PRIOR LEGISLATIVE HISTORY:
2009-10: S.1669 Commerce, Economic Development & Small Business Cmte.
2006: Senate Finance Cmte./Assembly Judiciary Cmte.

FISCAL IMPLICATION FOR STATE AND LOCAL GOVERNMENTS:
Not known.

EFFECTIVE DATE:


This act shall take effect on the one hundred twentieth day after it
shall have become law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4685

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 14, 2011
                               ___________

Introduced  by Sen. FLANAGAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Commerce, Economic  Devel-
  opment and Small Business

AN  ACT  to  amend the public authorities law, the not-for-profit corpo-
  ration law, the general municipal law and the eminent domain procedure
  law, in relation to eminent domain reform

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Short  title. This act shall be known and may be cited as
the "eminent domain reform act".
  S 2. The public authorities law is amended by  adding  a  new  section
1831-b to read as follows:
  S  1831-B. EXERCISE OF POWER OF EMINENT DOMAIN; LIMITATIONS. THE LOCAL
LEGISLATIVE BODY OF EACH CITY, TOWN, OR VILLAGE IN WHICH  THE  AUTHORITY
SEEKS  TO  EXERCISE THE POWER OF EMINENT DOMAIN SHALL HAVE THE AUTHORITY
TO APPROVE OR DISAPPROVE ANY EXERCISE OF SUCH POWER  BY  THE  AUTHORITY.
EVERY  SUCH LOCAL LEGISLATIVE BODY SHALL APPROVE OR DISAPPROVE ANY EXER-
CISE OF SUCH POWER BY MAJORITY VOTE. WHERE APPLICABLE IN  THE  ENACTMENT
OF  LOCAL  LAWS,  THE  CHIEF  EXECUTIVE  OFFICER OF SUCH LOCALITY IF THE
OFFICE OF SUCH CHIEF EXECUTIVE OFFICER  IS  ELECTIVE  SHALL  APPROVE  OR
DISAPPROVE SUCH LOCAL LEGISLATIVE BODY'S DECISION, SUBJECT TO ANY APPLI-
CABLE RIGHT TO OVERRIDE.
  S  3.  Paragraph (i) of section 1411 of the not-for-profit corporation
law is relettered paragraph (j) and a new paragraph (i) is added to read
as follows:
  (I) MUNICIPAL INPUT.  THE LOCAL LEGISLATIVE BODY OF EACH  CITY,  TOWN,
OR  VILLAGE  IN  WHICH  ANY  PART OF THE REAL PROPERTY TO BE ACQUIRED IS
LOCATED SHALL HAVE THE AUTHORITY TO APPROVE  OR  DISAPPROVE  ANY  CORPO-
RATION'S  USE  OF EMINENT DOMAIN. EACH SUCH LOCAL LEGISLATIVE BODY SHALL
APPROVE OR DISAPPROVE ANY PROPOSED CORPORATE USE OF THE POWER OF EMINENT
DOMAIN BY MAJORITY VOTE. WHERE APPLICABLE  IN  THE  ENACTMENT  OF  LOCAL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07507-01-1

S. 4685                             2

LAWS, THE CHIEF EXECUTIVE OFFICER OF SUCH LOCALITY IF THE OFFICE OF SUCH
CHIEF  EXECUTIVE  OFFICER  IS  ELECTIVE SHALL APPROVE OR DISAPPROVE SUCH
GOVERNING BODY'S DECISION, SUBJECT TO ANY APPLICABLE RIGHT TO OVERRIDE.
  S  4.  The  general  municipal  law is amended by adding a new section
858-c to read as follows:
  S 858-C. MUNICIPAL INPUT. THE GOVERNING BODY OF EACH  CITY,  TOWN,  OR
VILLAGE FOR WHOSE BENEFIT, IN WHOLE OR IN PART, AN AGENCY IS ESTABLISHED
SHALL  HAVE  THE  AUTHORITY  TO  APPROVE OR DISAPPROVE ANY AGENCY USE OF
EMINENT DOMAIN. EACH SUCH GOVERNING BODY SHALL APPROVE OR DISAPPROVE THE
USE OF EMINENT DOMAIN BY MAJORITY VOTE. WHERE APPLICABLE IN  THE  ENACT-
MENT  OF LOCAL LAWS, THE CHIEF EXECUTIVE OFFICER OF SUCH LOCALITY IF THE
OFFICE OF SUCH CHIEF EXECUTIVE OFFICER  IS  ELECTIVE  SHALL  APPROVE  OR
DISAPPROVE  SUCH  GOVERNING  BODY'S  DECISION, SUBJECT TO ANY APPLICABLE
RIGHT TO OVERRIDE.
  S 5. Section 103 of the eminent domain procedure  law  is  amended  by
adding two new subdivisions (H) and (I) to read as follows:
  (H)  "ECONOMIC DEVELOPMENT PROJECT" MEANS ANY PROJECT FOR WHICH ACQUI-
SITION OF REAL PROPERTY MAY BE REQUIRED FOR A PUBLIC  USE,  BENEFIT,  OR
PURPOSE  WHERE  SUCH  PUBLIC  USE,  BENEFIT, OR PURPOSE IS PRIMARILY FOR
ECONOMIC DEVELOPMENT AND WHERE THE CONDEMNEE'S REAL PROPERTY IS  A  HOME
OR DWELLING.
  (I) FOR THE PURPOSES OF ARTICLE TWO OF THIS CHAPTER:
  (1) "HOME" MEANS OWNER-OCCUPIED RESIDENTIAL PREMISES CONSISTING OF NOT
MORE THAN SIX DWELLING UNITS.
  (2)  "DWELLING" MEANS RESIDENTIAL PREMISES CONSISTING OF NOT MORE THAN
THIRTY DWELLING UNITS, NONE OF WHICH IS OCCUPIED BY  AN  OWNER  OF  SUCH
PREMISES.
  (3)  IN  THE CASE OF COOPERATIVE APARTMENT CORPORATIONS, TITLE TO THAT
PORTION OF REAL PROPERTY OWNED BY A COOPERATIVE APARTMENT CORPORATION IN
WHICH A TENANT-STOCKHOLDER OF SUCH CORPORATION  RESIDES,  AND  WHICH  IS
REPRESENTED  BY  HIS OR HER SHARE OR SHARES OF STOCK IN SUCH CORPORATION
AS DETERMINED BY ITS OR THEIR PROPORTIONAL  RELATIONSHIP  TO  THE  TOTAL
OUTSTANDING STOCK OF THE CORPORATION, INCLUDING THAT OWNED BY THE CORPO-
RATION, SHALL BE DEEMED TO BE VESTED IN SUCH TENANT-STOCKHOLDER NOTWITH-
STANDING THE NUMBER OF DWELLING UNITS IN SUCH RESIDENTIAL PREMISES, THUS
QUALIFYING A COOPERATIVE APARTMENT AS A HOME.
  S  6.  Subdivision  (B) of section 204 of the eminent domain procedure
law is amended to read as follows:
  (B) The condemnor, in its determination and findings,  shall  specify,
but shall not be limited to the following:
  (1)  the  public  use, benefit or purpose to be served by the proposed
public project;
  (2) the approximate location for the proposed public project  and  the
reasons for the selection of that location;
  (3)  the general effect of the proposed project on the environment and
residents of the locality;
  (4) A DECLARATION TO SUCH EFFECT IF  THE  PRIMARY  PUBLIC  PURPOSE  IS
DETERMINED  TO BE FOR ECONOMIC DEVELOPMENT WHERE ONE OR MORE CONDEMNEES'
HOMES OR DWELLINGS ARE TO BE AFFECTED; AND
  (5) such other factors as it considers relevant.
  S 7. The eminent domain procedure law  is  amended  by  adding  a  new
section 204-a to read as follows:
  S  204-A.  ECONOMIC  DEVELOPMENT  CONDEMNATION  FINDINGS AND HOMEOWNER
PROTECTION. (A) IF THE CONDEMNOR DETERMINES PURSUANT TO  PARAGRAPH  FOUR
OF  SUBDIVISION (B) OF SECTION TWO HUNDRED FOUR OF THIS ARTICLE THAT THE
PRIMARY PUBLIC PURPOSE OR  BENEFIT  IS  FOR  ECONOMIC  DEVELOPMENT,  THE

S. 4685                             3

CONDEMNOR,  IN  COOPERATION WITH THE GOVERNMENT OF THE LOCALITY IN WHICH
THE REAL PROPERTY TO BE ACQUIRED IS LOCATED SHALL PREPARE  A  COMPREHEN-
SIVE ECONOMIC DEVELOPMENT PLAN FOR THE AFFECTED AREA.  THE COMPREHENSIVE
ECONOMIC  DEVELOPMENT  PLAN  SHALL  INCLUDE,  BUT NOT BE LIMITED TO, THE
ACTUAL OR EXPECTED BENEFITS  OF  THE  PROJECT,  INCLUDING  THE  EXPECTED
INCREASED  TAX  REVENUE OR EXPECTED CREATION OF JOBS, THE TYPES OF BUSI-
NESSES OR INDUSTRY THAT WILL USE THE CONDEMNED  PROPERTY,  AND  ALTERNA-
TIVES  TO THE PLAN. WHEN A DRAFT COMPREHENSIVE ECONOMIC DEVELOPMENT PLAN
IS CREATED, THE CONDEMNOR, IN COOPERATION WITH  THE  GOVERNMENT  OF  THE
LOCALITY IN WHICH THE REAL PROPERTY TO BE ACQUIRED IS LOCATED SHALL HOLD
AT  LEAST  ONE  PUBLIC  HEARING TO COMPILE AND ANALYZE PUBLIC INPUT. THE
PUBLIC HEARING SHALL BE HELD IN ACCORDANCE WITH THE PROVISIONS  OF  THIS
ARTICLE  AT  A  LOCATION REASONABLY PROXIMATE TO THE REAL PROPERTY WHICH
MAY BE ACQUIRED  FOR  SUCH  PROJECT.  THEREAFTER,  THE  CONDEMNOR  SHALL
COMPLETE A FINAL COMPREHENSIVE ECONOMIC DEVELOPMENT PLAN TO BE SUBMITTED
TO  THE LOCAL LEGISLATIVE BODY, SUBJECT TO ANY APPLICABLE RIGHT TO OVER-
RIDE FOR ITS APPROVAL.   TO MOVE FORWARD WITH  THE  PROJECT,  THE  LOCAL
LEGISLATIVE  BODY  MUST APPROVE THE PLAN BY A MAJORITY VOTE, AND IT MUST
ALSO BE APPROVED BY THE CHIEF EXECUTIVE OFFICER OF SUCH LOCALITY IF  THE
OFFICE OF SUCH CHIEF EXECUTIVE OFFICER IS ELECTIVE.
  (B)  THE  CONDEMNOR  SHALL  ALSO  CREATE A HOMEOWNER IMPACT ASSESSMENT
STATEMENT. THE CONDEMNOR, IN THE HOMEOWNER IMPACT ASSESSMENT  STATEMENT,
SHALL  ASSESS  THE  ACTUAL  HARM TO AFFECTED CONDEMNEES' THAT WOULD LOSE
THEIR HOMES OR DWELLINGS AND  COMPARE  SUCH  HARM  WITH  THE  REASONABLY
EXPECTED  COMMUNITY  BENEFITS,  INCLUDING  BUT  NOT  LIMITED  TO HOW THE
CONDEMNOR JUSTIFIES THE TAKING OF THE CONDEMNEES'  HOMES  OR  DWELLINGS.
THE  HOMEOWNER IMPACT ASSESSMENT STATEMENT SHALL BE COMPLETED SIMULTANE-
OUSLY WITH THE COMPREHENSIVE ECONOMIC DEVELOPMENT PLAN UNDER SUBDIVISION
(A) OF THIS SECTION. THE HOMEOWNER IMPACT ASSESSMENT STATEMENT SHALL  BE
MADE WIDELY AVAILABLE.
  (C)  IN  CASES WHERE A CONDEMNEE'S HOME OR DWELLING IS ACQUIRED FOR AN
ECONOMIC DEVELOPMENT PROJECT, THE CONDEMNOR SHALL, IN  ADDITION  TO  ANY
OTHER  COMPENSATION  REQUIREMENTS  UNDER  THIS  ARTICLE,  COMPENSATE THE
CONDEMNEE A MINIMUM OF ONE HUNDRED FIFTY  PERCENT  OF  THE  FAIR  MARKET
VALUE  OF THE REAL PROPERTY. RESIDENTS WHO ARE DISPLACED BY THE ECONOMIC
DEVELOPMENT PROJECT SHALL ALSO BE COMPENSATED AT LEAST ONE HUNDRED FIFTY
PERCENT OF THE ANNUAL RENT OF SUCH DWELLING.
  S 8. Subdivision (A) of section 207 of the  eminent  domain  procedure
law,  as  amended by chapter 356 of the laws of 1982, is amended to read
as follows:
  (A) Any person or persons  jointly  or  severally,  aggrieved  by  the
condemnor's  determination  and  findings  made  pursuant to section two
hundred four of this article, may seek judicial review  thereof  by  the
appellate  division  of  the  supreme  court, in the judicial department
embracing the county wherein the proposed facility  is  located  by  the
filing of a petition in such court within [thirty] NINETY days after the
condemnor's completion of its publication of its determination and find-
ings pursuant to section two hundred four [herein] OF THIS ARTICLE. Such
petition  shall  be  accompanied  by proof of service of a demand on the
condemnor to file with said court a copy of a written transcript of  the
record  of the proceeding before it, and a copy of its determination and
findings. Upon receipt of such petition and demand, the condemnor  shall
forthwith  deliver  to  the court a copy of the record and a copy of its
determination and findings. The proceeding shall be heard on the  record
without requirement of reproduction. If such proposed public improvement
is  located in more than one judicial department, such proceeding may be

S. 4685                             4

brought in any one, but only one, of  such  departments,  and  all  such
proceedings  with relation to any single public project shall be consol-
idated with that first filed.  IF THE CONDEMNOR SUBSTANTIALLY ALTERS THE
SCOPE OF THE PROJECT OR THE DETERMINATION AND FINDINGS, THEN THE CONDEM-
NEE  SHALL  HAVE AN ADDITIONAL NINETY DAYS FROM THE CONDEMNOR'S PUBLICA-
TION OF SUCH ALTERATION, WHICH PUBLICATION IS HEREBY REQUIRED,  TO  SEEK
JUDICIAL REVIEW UNDER THIS SECTION.
  S 9. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

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